CYIL Vol. 4, 2013

DAVID PETRLÍK CYIL 4 ȍ2013Ȏ scope of application of the Charter, subsidiary approach, national constitutional traditions, Solange doctrine, Bosphorus doctrine, accession of the EU to the ECHR On the Author: JUDr. David Petrlík studied at the Law Faculty of the West Bohemian University in Pilsen, at the University of Passau in Germany, and at the Université Paris I – Panthéon-Sorbonne, where he specialized in EU law. He obtained the degree of Doctor of Law (JUDr.) at the Law Faculty of Charles University in Prague. After graduation, he worked at the Ministry of Foreign Affairs of the Czech Republic in the Department of the Agent of the Government in proceedings before the Court of Justice of the European Union. Since 2004, he is Legal Secretary at the Court of Justice of the European Union. He is also an external lecturer at the Department of European Law at the Law Faculty of Charles University. I. Introduction Since the famous Solange rulings of the German Constitutional Court, relationships between the EU, ECHR and national systems of fundamental rights have been marked not only by a mutual respect, but also by certain tensions. 1 The purpose of the new Article 6 TEU is to reduce such tensions and to ensure a harmony between these systems. It has remedied, first of all, the principal deficiency of the EU system, stressed in the Solange I ruling, which was the non-existence of a written and binding catalogue of fundamental rights, as its paragraph 1 states that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights which has the same legal value as the Treaties. 2 Furthermore, its paragraph 2 obliges the EU to accede to the ECHR, and it consequently endeavours to reduce tensions between the EU and ECHR systems. In this respect it is also important that, by virtue of Article 52(3) of the Charter, the meaning and scope of fundamental rights set out in the Charter shall be the same as those laid down by the ECHR, unless the Union recognises a more extensive protection. 3 Finally, tensions between the three systems are moderated by Article 6(3) TEU, which reaffirms that fundamental rights, 1 European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (“ECHR”). BVerfGE 37, 271, called “Solange I”. An English translation is available in [1974] CMLR 540. BVerfGE 73, 339, called “Solange II” ([1987] 3 CMLR 225). 2 Charter of Fundamental Rights of the European Union (“Charter”). The Charter was adopted on 7 December 2000, but, until the Treaty of Lisbon, it was a non-binding document which served only as a material source of fundamental rights, and not as a formal one. However, despite its non-binding nature, the Court of Justice applied the Charter before the Treaty of Lisbon, albeit with a certain caution (see Case C-540/03 Parliament v. Council [2006] ECR I-5769; Case C-305/05 Advocaaten van de Wereld [2007] ECR I-3633, paragraph 46; Case C-432/05 Unibet [2007] ECR I-2271, paragraph 37; Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union [2007] ECR I-10779, paragraph 44). The Charter was adapted in Strasbourg on 12 December 2007. 3 This holds true insofar as the Charter contains rights which correspond to rights guaranteed by the ECHR. These corresponding rights are specified in the Explanations drawn up under the authority of the Praesidium of the Convention, which drafted the Charter, and updated under the responsibility of the Praesidium of the European Convention (OJ 2007 C 303, p. 17). Pursuant to Article 52(7) of the Charter, these Explanations shall be given due regard by the courts of the Union.